Citation Nr: 0531178
Decision Date: 11/18/05 Archive Date: 11/30/05
DOCKET NO. 98-03 709A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a rating in excess of 10 percent, on appeal
from the initial award of service connection for generalized
anxiety disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W.L. Pine, Counsel
INTRODUCTION
The veteran had active service from April 1954 to March 1956.
This appeal is from a rating decision of the Department of
Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office
(RO).
FINDINGS OF FACT
1. From the effective date of service connection until
November 5, 1996, the veteran's generalized anxiety disorder
was manifested by considerable impairment in his ability to
maintain favorable relationships and psychoneurotic symptoms
resulted in considerable industrial impairment due to reduced
reliability, flexibility, and efficiency.
2. From November 6, 1996, to the present, the veteran has
suffered social and industrial impairment with reduced
reliability and productivity due to flattened affect,
impaired judgment, disturbances of motivation and mood
resulting in difficulty maintaining effective work
relationships.
CONCLUSION OF LAW
The schedular criteria for a 50 percent disability rating,
but no higher, for generalized anxiety disorder with
depression are met from the effective date of service
connection to the present. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.1, 4.2, 4.10, 4.132, Diagnostic Code 9400
(1996); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Disability Evaluation
There are several salient features of the evidence of record.
The veteran's symptoms are persistent; certain symptoms have
been reported consistently throughout the VA treatment
records, which comprise a continuous record since August
1989. Several symptoms appear to be transient, appearing in
the outpatient treatment records for some time, and then
remitting or subsiding. The intensity of the symptoms
appears labile from the outpatient treatment records. There
is a marked discrepancy between the VA compensation
examiners' assessment of the severity of the veteran's
symptomatology and his treating physicians' assessments.
Further, there is probative evidence of the veteran's
exaggeration of his symptoms in the clinical setting in the
form of two reports of VA social and industrial field surveys
made five years apart. The following summary and discussion
of the evidence provides the reasons and bases for concluding
that the evidence as a whole better supports a disability
rating in the middle of the range of ratings available for
generalized anxiety disorder than it does a rating either
higher or lower. Any trend in the veteran's symptoms is not
so pronouncedly linear as to compel maintaining a lower
rating earlier in the period under review than is warranted
ultimately.
This appeal is from the initial rating assigned to a
disability upon awarding service connection. The entire body
of evidence is for equal consideration. Consistent with the
facts found, the rating may be higher or lower for segments
of the time under review on appeal, i.e., the rating may be
"staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an
increased rating is at issue, the present level of the
disability is the primary concern).
The RO did not consider staged ratings. Before the Board may
execute a staged rating of the appellant's disability, it
must be determined that there is no prejudice to the
appellant to do so without remand to the RO for that purpose.
Bernard v. Brown, 4 Vet. App. 384, 389 (1993). Under the
facts of this case, discussed below, there is no change in
the severity of a disability under consideration that would
require that any higher rating be effective for less than the
entire period under review. Thus, there can be no prejudice
to the appellant for the Board to now consider the
appropriate rating of the disability at issue.
VA awarded service connection for generalized anxiety
disorder, not otherwise specified, with depression, based on
an October 1996 claim. About a month later, effective
November 6, 1996, VA implemented amendments to the rating
criteria for psychiatric disorders. Compare 38 C.F.R.
§ 4.132 (1996) with 38 C.F.R. § 4.130 (2005) (unamended since
1996). In May 1997, VA was obligated to consider whether the
veteran's disability rating would be more favorably to him
under the older rating criteria and apply them throughout the
period being rated, applying the newer rating criteria only
if they afforded a higher rating. Karnas v. Derwinski, 1
Vet. App. 308 (1991) overruled in part Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003). The newer rating criteria, even
if more favorable, could not then, and cannot now apply prior
to the effective date of their implementation. 38 U.S.C.A.
§ 5110(g) (West 2002); VAOPGCPREC 7-2003. "The Karnas rule
. . . would improperly prohibit VA from applying certain
statutes and regulations that may be unfavorable to claimants
even though such laws would govern under Supreme Court
precedent because they do not have retroactive effects."
VAOPGCPREC 7-2003 at 8. Consequently, this decision will
apply the older rating criteria from the effective date of
service connection, October 15, 1996, through November 5,
1996, and the newer rating criteria from their effective
date, November 6, 1996. See 61 Fed. Reg. 52700 (Oct. 8,
1996).
In review of claims for higher ratings, the Board considers
all of the medical evidence of record, including the
appellant's relevant medical history. 38 C.F.R. § 4.1
(2005); Peyton v. Derwinski, 1 Vet. App. 282, 285 (1991);
Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The
medical findings are compared to the criteria in the VA
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2005), to
determine the extent to which a service-connected disability
adversely affects the ability of the body to function under
the ordinary conditions of daily life, including employment.
38 C.F.R. §§ 4.2, 4.10 (2005).
The General Formula for Rating Psychoneurotic Disorders in
effect in October 1996 provided the following criteria:
100 percent: The attitudes of all
contacts except the most intimate are so
adversely affected as to result in
virtual isolation in the community.
Totally incapacitating psychoneurotic
symptoms bordering on gross repudiation
of reality with disturbed thought or
behavioral processes associated with
almost all daily activities such as
fantasy, confusion, panic and explosions
of aggressive energy resulting in
profound retreat from mature behavior.
Demonstrably unable to obtain or retain
employment.
70 percent: Ability to establish and
maintain effective or favorable
relationships with people is severely
impaired. The psychoneurotic symptoms
are of such severity and persistence that
there is severe impairment in the ability
to obtain or retain employment.
50 percent: Ability to establish or
maintain effective or favorable
relationships with people is considerably
impaired. By reason of psychoneurotic
symptoms the reliability, flexibility and
efficiency levels are so reduced as to
result in considerable industrial
impairment.
30 percent: Definite impairment in the
ability to establish or maintain
effective and wholesome relationships
with people. The psychoneurotic symptoms
result in such reduction in initiative,
flexibility, efficiency and reliability
levels as to produce definite industrial
impairment.
10 percent: Less than the criteria for
the 30 percent, with emotional tension or
other evidence of anxiety productive of
mild social and industrial impairment.
0 percent: There are neurotic symptoms
which may somewhat adversely affect
relationships with others but which do
not cause impairment of working ability.
38 C.F.R. § 4.132 (1996).
The General Rating Formula for Mental Disorders effective
November 6, 1996, provides:
100 percent: Total occupational and
social impairment, due to such symptoms
as: gross impairment in thought processes
or communication; persistent delusions or
hallucinations; grossly inappropriate
behavior; persistent danger of hurting
self or others; intermittent inability to
perform activities of daily living
(including maintenance of minimal
personal hygiene); disorientation to time
or place; memory loss for names of close
relatives, own occupation, or own name.
70 percent: occupational and social
impairment, with deficiencies inmost
areas, such as work, school, family
relations, judgment, thinking, or mood,
due to such symptoms as: suicidal
ideation; obsessional rituals which
interfere with routine activities; speech
intermittently illogical, obscure, or
irrelevant; near-continuous panic or
depression affecting the ability to
function independently, appropriately and
effectively; impaired impulse control
(such as unprovoked irritability with
periods of violence); spatial
disorientation; neglect of personal
appearance and hygiene; difficulty in
adapting to stressful circumstances
(including work or a worklike setting);
inability to establish and maintain
effective relationships.
50 percent: Occupational and social
impairment with reduced reliability and
productivity due to such symptoms as:
flattened affect; circumstantial,
circumlocutory, or stereotyped speech;
panic attacks more than once a week;
difficulty in understanding complex
commands; impairment of short- and long-
term memory; impaired judgment; impaired
abstract thinking; disturbances of
motivation and mood; difficulty in
establishing and maintaining effective
work and social relationships.
30 percent: Occupational and social
impairment with occasional decrease in
work efficiency and intermittent periods
of inability to perform occupational
tasks (although generally functioning
satisfactorily, with routine behavior,
self-care, and conversation normal), due
to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep
impairment, mild memory loss (such as
forgetting names, directions, recent
events).
10 percent: Occupational and social
impairment due to mild or transient
symptoms which decrease work efficiency
and ability to perform occupational tasks
only during periods of significant
stress, or; symptoms controlled by
continuous medication.
0 percent: A mental condition has been
formally diagnosed, but symptoms are not
severe enough either to interfere with
occupational and social functioning or to
require continuous medication.
38 C.F.R. § 4.130 (2005).
Historically, the veteran first obtained psychiatric
treatment in the early 1960's. In April 1962 he was
hospitalized for an overdose of medication, which the veteran
has since reported was a suicide attempt. In February 1992,
a VA psychiatrist observed the veteran to have a labile
affect and moderate anxiety. The veteran complained of
palpitations and other somatic symptoms. He anticipated
misfortune. The psychiatrist diagnosed generalized anxiety
disorder, panic disorder and explosive personality disorder.
The veteran was said to have poor judgment and no insight.
Psychiatric evaluation by a VA psychologist in February 1992
produced a diagnosis of generalized anxiety disorder, not
otherwise specified.
September VA outpatient mental health records noted the
veteran's complaints of frequent headaches and anxiety for
the past several days, with symptoms including sleep
disturbance, nightmares, fear of people, poor tolerance for
people, noise, and frustration, poor impulse control, poor
concentration, poor motivation and decreased interest in
daily activities. The veteran reported episodes of hostility
and verbal aggression. The clinician noted there were no
delusions, illusions, or hallucinations, and memory and
intellect were adequate. The veteran's insight and judgment
were poor. He was assessed with a chronic and severe mental
disorder, restless and irritable, with poor tolerance to
people, episodes of anxiety and panic attacks.
In October 1996, the veteran saw Dr. Juarbe privately for
evaluation. Dr. Juarbe took a history from the veteran and
conducted an examination, diagnosing PTSD based on the
veteran's report of recollections of an incident of
swallowing gasoline in service, which had resulted in
recurrent laryngitis and other upper respiratory problems.
The veteran reported nightmares and recollections of the
incident. The veteran reported feeling anxious, depressed,
having insomnia, irritability, and anticipation of his own
illness. The veteran reported hearing voices of dead
relative calling him. The doctor also diagnosed major
depression with psychotic features as related to the
veteran's throat conditions.
A VA examiner in February 1997 made careful review of the
veteran's VA claims folder and other medical records, took a
detailed history and performed current mental status
examination. The examiner concluded that the veteran had
generalized anxiety disorder, not otherwise specified, with
depression. The examiner opined the veteran's symptoms were
incompatible with PTSD; close interviewing and review of
records showed the veteran did not have dissociative
episodes; the nightmares were not of the incident in service;
and the veteran did not demonstrate or indicate psychotic
symptoms. The veteran was in full contact with reality and
adequately dressed and groomed. He was coherent and logical
in answering questions. He denied delusions or
hallucinations. The reported anxiety, poor frustration
tolerance, quick temper, and intolerance to noises and to
silence. The veteran reported episodes of depression during
which he will isolate himself from his family. He reported
sleep disturbance by nightmares of being chased and of a
doctor's past prognosis that he was a candidate to develop
throat cancer. His mood was somewhat anxious and depressed.
His affect was adequate to his emotions. He was oriented to
person, place and time. His memory was preserved and his
intellectual functioning was maintained. His judgment was
adequate and his insight was fair. The examiner made a
Global Assessment of Functioning (GAF) of 70 to 75. In an
April 1997 addendum report, the examiner opined that the
veteran's symptoms were mild, mostly responding to
exacerbations of his medical conditions.
A March 1997 outpatient report was like the September 1996
report in symptoms and impression. In September 1997, the
veteran complained of anxiety with hypochondriacal traits,
which the evaluating clinician related to the recent death of
the veteran's brother in law due to cancer and the death of a
cousin by suicide. In March 1998, the veteran complained of
restlessness, sleep disturbance due to nightmares, shortness
of breath and fear of death. In March 1998, the veteran
additionally reported episodes of depression. He also
reported episodes of obsession towards hygiene and security
at home; he reported walking and talking obsessively. He had
no suicidal or homicidal ideation. His judgment and insight
were poor. The impression was chronic anxiety with episodes
of panic and obsessive-compulsive traits. A September 1998
report was similar, with anxiety noted as chronic and severe;
the veteran was said to have an aggressive attitude and he
was afraid to lose control.
A March 1999 report from Dr. Juarbe diagnosed major
depression with psychotic features. The doctor reported the
veteran was quite anxious, complaining of insomnia, frequent
awakenings, and nightmares. The veteran reported hearing
voices, feeling worthless and hopeless, with low tolerance
and low frustration levels, frequent crying spells, and
suicidal thoughts and a history of several suicide attempts.
The veteran reported feeling tightness of breath, always
feeling isolated and panicky, and that he relived the
gasoline swallowing incident in service. Dr. Juarbe opined
that the veteran was chronically and severely ill, with no
industrial or social adaptability, and that he was a real
suicide risk in need of indefinite treatment.
The veteran had a VA compensation examination in August 1999.
The examiner did not have the claims file or other health
records. The veteran reported that he last worked at his own
business in 1990 and he quit when he hit a client. The
veteran complained that he was given a GAF of 70 on his last
compensation examination, but a GAF of 45 to 50 from the
outpatient clinic. He felt VA's compensation decisions were
unfair. He reported getting short of breath and disoriented
when anxious. He stated he could not socialize. He reported
depression and suicidal ideas. He complained of feeling
worse every day. The examiner found him adequately dressed
and groomed, with an anxious mood and constricted affect. He
had good attention, concentration, and memory. His speech
was clear and coherent. He was not suicidal or homicidal.
His judgment and insight were fair; he had good impulse
control. The examiner diagnosed generalized anxiety disorder
with depressive features with a GAF of 70.
In September 1999, VA sent a social worker to the veteran's
home unannounced for a social and industrial survey to
evaluate the veteran's daily functioning. He was not home.
He had gone to San Juan for business with a state agency.
The social worker interviewed the veteran's wife, viewed
their house, and interviewed a neighbor. The house was in
good condition inside and out. He conducted an office
interview at a later date. The veteran's wife reported that
the veteran argued about and worried about everything and
could not deal with crises, his or his relatives. She
reported that he did ritual strange "mimics" and movements
that he could not control. The neighbor reported that the
veteran was nervous, but did not show abnormal behavior.
On follow-up office interview, the veteran reported that he
carved wooden figures of saints for relaxation, which he sold
at craft fairs when he felt well, because he could work at
his own pace. He reported fearing sleep because he feared
dying in his sleep. He reported that he did not like being
told what to do.
VA outpatient mental health records from October 1990 to
September 2002 show ongoing diagnosis of generalized anxiety
disorder. In October 2002, the veteran reported to the RO
that he obtained all of his psychiatric treatment from VA. A
January 2003 general medical progress note noted he was
oriented, well nourished, well dressed, and in no acute
distress.
A January 2003 compensation examination report noted the
examiner did not have the veteran's claims file or hospital
records. The veteran reported feeling worse every day. He
complained of dropping things, forgetting things told him,
passing his destination, and other serious memory problems
for a long time, such as what was just on television. He
reported getting lost easily, crying frequently, and checking
doors at home repeatedly. He reported forgetting names of
people and relative and how to use an ATM machine.
Objectively, the veteran was clean, alert and oriented to
person, place and year. His mood was anxious, his affect was
constricted, and his attention was fair. His memory was
impaired; he could not recall any of three objects after
three minutes. His speech was clear, coherent, and loud. He
was not hallucinating. He was not suicidal or homicidal.
His insight and judgment were impaired. He had good impulse
control. The examiner diagnosed primary degenerative
demential, Alzheimer's type, and generalized anxiety disorder
with depressive features. The GAF was 50.
April 2003 outpatient examination found the veteran depressed
mood with poor tolerance to people and noises, isolated at
home. The diagnosis was generalized anxiety disorder; the
GAF was 50.
In outpatient treatment of June 2003, the veteran reported
severe episodes of anxiety, restlessness, irritability, poor
tolerance of people and noise. He sought treatment because
he was worried by the compensation examiner's diagnosis of
Alzheimer's disease; he was afraid to loose his mind. He
reported episodes of palpitations and poor interest in daily
life activities. The examining physician commented that the
veteran had poor concentration and forgetfulness, but he was
not disoriented at home or while driving and at present had
no other symptoms of Alzheimer's. The opinion was that poor
concentration was mostly due to episodes of severe anxiety
and poor social and family functioning. The examiner opined
that poor tolerance to people and noises with episodes of
irritability made him unable to perform occupational
efficiency. The clinical findings included severe episodes
of anxiety, restlessness, irritability, poor concentration,
easy distractibility, forgetfulness and poor impulse control.
The diagnosis was generalized anxiety disorder, severe,
atypical depression.
On outpatient visit of January 2004, the veteran reported
essentially all symptoms noted previously. He reported that
his mind gets blocked and he "lose his mind." The examiner
commented that the veteran's poor concentration was
exacerbated by severe anxiety. He had poor impulse control
and he was unable to tolerate stress. The veteran got angry
with any change of plan or minimal stress. He denied
suicidal or homicidal ideas, but a history of suicide
attempts was noted. The examiner opined that the veteran was
unable to handle his funds due to poor judgment and
exacerbation of symptoms. He was oriented about adequate use
of medications.
The veteran had reported receipt of Social Security benefits,
but he never characterized them as disability insurance
benefits. In response to VA's request for administrative and
medical documents pertinent to any claim for or payment of
disability benefits, the SSA responded in April 2004 that the
veteran had not filed a claim for disability benefits.
An April 2004 Computed Tomography (CT) scan of the brain
found mild dilatation of the ventricular system with
prominent cortical sulci compatible with cortical atrophy,
otherwise normal. On subsequent compensation examination in
April 2004 by the psychiatrist who performed the January 2003
examination, the examiner concluded that the prior diagnosis
of Alzheimer's disease was an error resulting from the
veteran's misrepresentation of his symptoms.
The April 2004 compensation examination took place with
review of the veteran's claims file and outpatient records.
The examiner noted there was no record of psychiatric
hospitalization. The examiner noted the medications he was
prescribed by the VA outpatient clinic, and that he had not
refilled them. The veteran reported not working since 1990,
but not remembering when he retired. The examiner felt the
veteran tried to avoid reporting his occupational history.
The veteran came with his wife, but was interviewed alone.
He reported that his wife knew everything, and he stated he
did not know his address or telephone number. He reported
his physical conditions. He stated that Xanax had alleviated
chest pain. He said that on emergency room visits because of
palpitations, he was told he was fine, and he felt better
immediately. He reported periods of depression, feeling
lonely and uncomfortable, needing to go to his room. He
reported poor sleep, and having difficulty falling asleep.
He reported taking Prozac and Xanax only when he needed them,
and his wife controlled the medication. He reported that he
did woodworking, and that he participated in artisans'
activities. He reported that he did not watch much
television, and he complained of poor memory, being unable to
remember the TV actors' names; he stated he did not remember
what he has read, and that the condition has existed since
the 1960s. He complained of irritability and being verbally
aggressive. He reported that the prior diagnosis of
Alzheimer's disease worried him greatly. He reported that he
sells his crafts at fairs and that his wife handled the
money, because he had lost money.
The veteran was clean, adequately dressed and groomed, alert
and oriented to time, person, and place. His affect was
constricted. His attention and concentration were fair. His
memory was fair; he recalled the names of his doctors and
treatments. The examiner again commented that the veteran
had avoided reporting occupational history and his address.
The examiner also reported the veteran's attention and
concentration were good. The veteran's speech was clear and
coherent. He was not hallucinating. He was not suicidal or
homicidal. His insight and judgment were fair and he had
good impulse control.
The examiner reported there was no impairment of thought
processes, no delusions, and no inappropriate behavior other
than his claim of irritability. The examiner reported no
obsessive or ritualistic behavior, disruption of rate or flow
of speech, panic attacks, but noted the veteran's report of
periods of anxiety, depression and sleep problems. The
examiner opined that the veteran appeared competent to handle
VA funds.
The examiner commented that the veteran's behavior and
attitude at the beginning of the interview changed radically
when confronted with the purpose of the examination and when
informed that the examiner would review his outpatient
records. The veteran stated his reaction was because he got
nervous and upset at the VA parking.
The examiner opined that after careful review of the
outpatient mental health clinic notes, the CT scan of the
brain, and the Social and industrial field survey done for
the examination, the examiner's January 2003 diagnosis of
Alzheimer's disease was mistaken. The examiner opined that
the diagnosis was based on the veteran's claims and
presentation during the evaluation, but did not correspond to
the veteran's real condition and level of functioning. The
examiner opined that the veteran has excellent functioning in
social, occupational, and interpersonal capacities, as
clearly described in the Social and industrial field survey.
The examiner further opined that the veteran willfully and
intentionally provided false information and history to
himself and to the outpatient psychiatrist with the intention
to get increased compensation benefits. Finally, the
examiner opined that the veteran has only minimal
manifestations of his service-connected generalized anxiety
disorder. He is competent to handle his funds. The
diagnosis was generalized anxiety disorder, mild, with a GAF
of no less than 75.
On May 10, 2004, a VA social worker went to the veteran's
home unannounced to conduct a Social and Industrial Survey to
determine the veteran's level of functioning at home in daily
life. The veteran's wife stated the veteran was not at home;
he was buying a car for his son, because the son requested
his advice. The social worker noted the house was clean and
well maintained. The social worker interviewed one neighbor,
who reported the veteran had good behavior in the community
and that he participates in fairs. The social worker noted
the veteran had good relations with his neighbors. The
social worker arranged with the veteran's wife for him to
report to San Juan VA Medical Center on May 12, 2004, for an
interview.
On May 11, 2004, the day before the interview with the social
worker, the veteran came into the outpatient mental health
clinic reporting severe anxiety, restlessness, irritability,
with episodes of air hunger and fear of death with panic
attack, most recently last night, when he thought he would
die. The veteran referred to poor tolerance to people,
noises, and frustration. He referred to poor control of
impulses, episodes of anger, poor concentration, blocking
during interview, particularly when anxious or angry. The
examiner encouraged him to continue his hobby of carving
saints, which alleviated his anxiety. The veteran referred
to 50 or 60 episodes of obsessions with closed doors,
rechecking the stove, lights, and locks, and a few months ago
having excessive worry about fear of being alone and in the
dark. He denied suicidal or homicidal ideas. He reported
good response to medications and being oriented about the
adequate use of medication. The diagnosis was generalized
anxiety disorder with panic attacks with a GAF of 50.
The veteran appeared for social and industrial survey on May
12, 2004, on time, clean and clean shaven, in clean, casual
clothes. He was cooperative and spontaneous during the
interview. The veteran reported sleep problems, sleeping
about five hours a night. He stated he likes to be alone and
did not socialize much with his neighbors. He described his
daily activities as cleaning the house and yard and
participating in wood carving meetings and fairs; he carves
religious figures in wood. The veteran reported his medical
treatment and current medications. The social worker took a
pre-military social history and a military history. The
veteran reported that he had no antisocial behavior prior to
service and he had good relationships with his family. The
veteran reported his post-service occupational history,
ultimately working as the self-employed owner of a muffler
shop until 1990, when he began to work in wood carving. His
last fair was in April 2004. The veteran reported that he
lived with his wife and mother-in-law, with whom he had good
relationships. His wife reported good relationships. The
veteran reported that he drives to buy hobby supplies.
A review of social and economic stressors was essentially
negative except for noting the veteran's unemployment since
1990. The social worker commented that the veteran engages
in activities and that he had moderate impairment; he
socializes with other people while at fairs in different
towns. The veteran's report of feeling restless sometimes
was indicative of his degree of impairment. The summary
ratings were moderate industrial impairment and mild social
impairment.
This extensive body of evidence presents a genuine conflict
in facts. The veteran's veracity is in question, as is the
probative value of conflicting reports. The evidence showing
the least social and industrial impairment is persuasive that
the veteran is correctly rated 10 percent disabled under both
the older and the newer rating criteria. Likewise, the
evidence showing the most severe impairment is persuasive the
veteran is correctly rated 100 percent disabled under the
older or the newer rating criteria.
Disparity of this extreme is not the sort of equally credible
and probative but opposing evidence that should be deemed in
equipoise with the benefit of the doubt going to the veteran
as between a 10 percent and a 100 percent rating. See
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3
(2005); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The
better result than balancing the extreme evidence is to
discount both extremes.
The veteran's seeking of treatment and persistent reports of
a consistent litany of symptoms over many years is persuasive
that he has those symptoms, even if the seeking of treatment
alone is not probative of the severity of the symptoms. His
absence from home on two unscheduled Social and industrial
field surveys is comparably persuasive that he is out and
about and functioning to a degree inconsistent with the
severity of symptoms he repeatedly reports. It is
particularly suspicious that he reported to the outpatient
clinic the day after the social worker visited his home,
reporting extreme symptoms that night, but he displayed no
such symptoms during the interview with the social worker the
next day. This disparity is ultimately persuasive that the
veteran is accurately rated by excluding the extremes in the
evidence and finding the correct rating somewhere in between.
The October 1996 private psychiatrist reported no source of
information but the veteran. The February 1997 VA examiner
reviewed all the available medical records in addition to
conducting the clinical interview. The VA examiner's report
is clearly the better informed report. The veteran told the
VA examiner that he saw the private psychiatrist three times
for evaluation; there is no indication the private examiner
treated the veteran or followed him for treatment. The VA
examiner's review of treatment records permitted him to
diagnose the veteran and assess the severity of the veteran's
disability in terms of global functioning. The VA examiner's
opinion is, therefore, the more probative of the veteran's
overall psychiatric functioning. Neither the VA examiner nor
the VA treating physicians concurred in Dr. Juarbe's
diagnosis. Concluding his diagnosis was incorrect, the
report is not reliable for the purpose of assessing the
severity of the veteran's psychiatric condition.
Dr. Juarbe's March 1999 report likewise is based on the
veteran's reports alone without any familiarity with the
veteran's condition through treatment. The remainder of the
medical records and reports do not concur in the doctor's
second diagnosis, either. In the absence of any other
diagnosis of major depression as the primary diagnosis, or of
any other opinion that the veteran manifests psychotic
symptoms, these diagnoses are rejected, and the report is
also rejected as viable evidence of the severity of the
veteran's psychiatric illness.
In evaluating the evidence of record, the RO discounted the
reports of Dr. Juarbe, because he had seen the veteran for
evaluation only and not for treatment. That can be said
generally of the VA compensation examiners also, if probative
value is to rest on the extent of contact with the veteran in
a treatment setting. If VA were to follow a "treating
physician rule," the VA compensation examiner's opinion
would be outweighed by the VA clinician's opinion by virtue
of the rule, regardless of the content of the reports or any
other factors that may have informed them. This is not a
reliable basis for assessing the probative value of medical
reports. VA has long rejected a "treating physician rule"
that by virtue of the rule gives greater weight to the
opinion of a treating physician than to that of a VA
compensation examiner or other physician. Winsett v. West,
11 Vet. App. 420, 424-25 (1998). The VA compensation
examiners' reports of August 1999 and January 2003, which
had no source of information but the veteran, are, like Dr.
Juarbe's opinions, of less probative weight than are the
February 1997 and the April 2004 VA compensation examiners'
opinions, which were informed by a complete review of the
entire record. That the January 2003 and April 2004 reports
are by the same VA physician well illustrates the importance
of historical perspective.
In weighing the evidence, then, the question is how to weigh
the particular VA compensation examinations informed by
historical perspective against the treatment records,
informed by the veteran's presentation at a time when he
purports to be suffering exacerbated symptoms. The non-
medical evidence, i.e., the Social and Industrial Surveys,
together with the April 2004 examiner's report, are
persuasive that the veteran exaggerates his symptoms. The
treating physician's reported observations, as distinguished
from their notation of the veteran's reports of symptoms at
home, are persuasive that the veteran's symptoms are not
entirely a ruse, as the April 2004 examiner opined.
In the context of the rating criteria, both old and new, the
reports by Dr. Juarbe and in VA outpatient records that the
veteran is totally disabled for any occupational activity or
is unable to handle funds is not credible for two reasons.
The veteran has demonstrated himself to be aggressive and
adept at prosecuting his VA claim, a claim for government
benefits. His financial statements show he receives SSA
benefits, and VA inquiry reveals they are not disability
benefits. It is reasonable to infer that his failure to
prosecute a claim for SSA benefits is evidence that he is not
disabled for SSA purposes. This is persuasive that the
veteran is not wholly demonstrably unable to obtain or retain
employment, 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996)
[hereinafter Diagnostic Code 9400 (1996)], and that he does
not have total occupational and social impairment. 38 C.F.R.
§ 4.130, Diagnostic Code 9400 (2005) [hereinafter Diagnostic
Code 9400 (2005)]. The impression that the veteran cannot
handle funds appears more likely than not erroneous. He was
helping his son buy a car when the VA social worker arrived
at his home in May 2005. He has made multiple reports of
selling his craft wares at craft fairs, and he has reported
purchasing craft supplies. The evidence does not credibly
show the presence of any of the criteria of a 100 percent
rating under either the older or the newer criteria.
Likewise, the evidence is persuasive that the veteran is
underrated at 10 percent under either the older or the newer
criteria. His long outpatient treatment record is persuasive
that his symptoms are more than mild. Variations over time
must be considered in evaluating the level of disability,
even if the changes in severity are not so great or too short
in duration to amount to a change in the level of
compensation. The variability itself can be indicative of
the overall degree of disability. See 38 C.F.R. §§ 4.1, 4.2,
4.10 (1996 & 2005). The outpatient treatment records in this
case reveal a degree of lability too great to deem the
veteran's disability mild. The current 10 percent rating is
inadequate under either the older or the newer rating
criteria.
The treatment records are persuasive that the veteran
demonstrates symptoms that at least result in reduction in
initiative, flexibility, efficiency and reliability so as to
produce definite industrial impairment, Diagnostic Code 9400
(1996), as defined. VAOPGCPREC 09-1993. There is persuasive
outpatient evidence of impaired judgment and disturbed
motivation and mood are as likely as not to reduce
reliability, flexibility, and efficiency to the level of
considerable industrial impairment. Id. The evidence from
the veteran and his wife regarding his craft sales through
craft fairs and his neighbor's May 2004 comments about his
participation in the community are persuasive that the
veteran does not suffer severe impairment of his ability to
establish and maintain effective or favorable relationships
with people, or that there is severe impairment of the
ability to obtain or retain employment. In sum, under the
rating criteria in effect until November 6, 1996, the veteran
is ratable as 50 percent but not more disabled by generalized
anxiety disorder with depression. 38 C.F.R. § 4.7 (2005);
Diagnostic Code 9400 (1996).
Likewise, considering the newer rating criteria, the
outpatient records of observed symptoms are persuasive that
the veteran has occupational and social impairment at least
resulting in occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks due to depressed mood, anxiety and weekly or less
frequent panic attacks; the evidence clearly shows he
functions satisfactorily with routine behavior and self care,
although his verbal aggression could qualify as failure of
normal conversation even though his speech is consistently
logical and coherent. Diagnostic Code 9400 (2005). Also, as
with the older criteria, the symptomatology reported as in
the outpatient records as observed versus reported more
nearly approximate an appearance of occupational and social
impairment with reduced reliability and productivity due to
flattened affect, impaired judgment and disturbance of
motivation or mood. It seems as likely as not that these are
sufficient to result in difficulty in establishing and
maintaining effective work and social relationships, Id.,
even if he can function at a higher level when comfortable at
home or upon limited activity, 38 C.F.R. § 4.10 (2005), as
with the amount of social interaction required to sell his
carvings at his leisure at crafts fairs.
The total disability picture does not meet or nearly
approximate the criteria for a 70 percent or higher rating
under the newer criteria. His reports of close family ties
with his wife and mother-in-law, with whom he lives, and his
son seeking him out to buy a car for or with him, are
persuasive that his disability is not as disruptive of
interpersonal relations as is required for a 70 percent
rating. His judgment is reported as varying from poor to
fair, but the social and industrial survey reports show
better functioning than that. This appears to be an instance
of the effect of his exaggeration of his condition on the
reporting clinicians' assessment. His remote history of
suicide attempt does not outweigh the repeated assessment
that he does not have suicidal ideation. The reported
obsessional rituals are not shown to interfere with routine
activities, even if he is compelled to check locks and stoves
more than others might; there is no observation of any
obsessional behavior in any examination report or treatment
record. His speech never has any of the characteristics of a
70 percent disability. His depression, while constant, is
not shown to affect his ability to function independently, as
his absence from home shows independent functioning as noted
in the two Social and industrial field surveys reveals.
Treatment records are persuasive that he is irritable, but
there is no report of violence since the reported and
undocumented instance of hitting a customer years before the
effective date of service connection. There is no spacial
disorientation or neglect of personal appearance or hygiene.
The veteran and his wife report his inability to adapt to
stress, but the extent of that inability is not shown to be
so great at to warrant or nearly approximate a 70 percent
disability. Finally, his satisfactory relations with his
family as shown in the Social and industrial field surveys
shows he can and does maintain effective relationships.
In sum, whether under the older or the newer rating criteria
for generalized anxiety disorder, the extent, persistence,
and variability in the veteran's generalized anxiety disorder
with depression results in disability commensurate with a 50
percent disability rating from the effective date of service
connection to the present.
II. Duty to Notify and to Assist
Under the Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R.
§ 3.159 (2005), VA must notify the veteran of the information
and evidence necessary to substantiate his claim, of his
right to VA assistance in prosecuting his claim, and of his
and VA's respective burdens in producing evidence to
substantiate his claim. VA must examine the veteran when
necessary to decide his claim, and obtain medical opinions
when necessary to decide the claim. VA must notify the
veteran of any failure to obtain evidence. In this case, the
claim at issue predates enactment of the VCAA, and VA could
not have complied with the Act prior to the initial
adjudication. See Pelegrini v. Principi, 17 Vet. App. 412
(2004).
In October 2002 and April 2004, VA notified the veteran by
letter of everything of which the law requires he be
informed, including evidence that he must provide and
evidence VA would attempt to obtain, distinguishing evidence
in his possession from evidence VA would obtain for him. The
veteran has had ample opportunity to submit evidence since
these letter, and has done so. Consequently he suffered no
prejudice from the receipt of the letters after the initial
adjudication of the claim. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).
VA has obtained all of the evidence of which it had notice,
and it notified the veteran of the SSA reply to VA's request
for records in a March 2005 supplemental statement of the
case. 38 C.F.R. § 3.159(c), (e) (2005). VA has examined the
veteran on multiple occasions and obtained medical opinions.
38 C.F.R. § 3.159(c)(4) (2005).
In sum, VA has discharged its duties under the VCAA in this
case.
ORDER
A 50 percent disability rating for generalized anxiety
disorder with depression is granted from the effective date
of service connection, subject to regulations governing
payment of monetary benefits.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs